Carter v. Kansas City Cable Ry. Co.

• Citation: 42 F. 37
• Parties: CARTER v. KANSAS CITY CABLE RY. CO.
• Decision Date: 01 March 1890
• Court: U.S. District Court — Western District of Missouri

42 F. 37

CARTER v. KANSAS CITY CABLE RY. CO.

United States Circuit Court, W.D. Missouri, Western Division.

March, 1890

Jettmore & Son, for plaintiff.

Johnson & Lucas, for defendant.

PHILIPS J., (orally ch

rging jury.) This is an action for personal injuries alleged to have been sustained by plaintiff while a passenger on defendant's cable-car at Kansas City. The plaintiff took passage on the car at the Union depot station to come up into the city. From that point to the summit of the hill there is a steep incline of several hundred feet in length. Just as the car reached the summit of the incline it suddenly stopped, and then began to run backward, to the foot of the incline, with great velocity, where it collided with another of defendant's cars. The plaintiff received by this collision injuries to one of his ankles and hands.

The defendant contends that the accident was from inevitable casualty, without any inculpatory act on its part; that the retrograde movement of the car was occasioned by sudden breaking of one of the shafts of the grip; and that, owing to the slippery condition of the rails from frost and snow, the downward movement of the car could not be stayed by the brakes.

There are certain general principles of law applicable to this case to be kept in mind by you for your guidance. The defendant in contemplation of law, is a common carrier of passengers for hire. As such, it undertook, in consideration of the fare paid by plaintiff, to safely carry him over its road to his point of destination. It did not undertake, however, to insure the life and limbs of such passenger. But as the public has an interest in the lives and limbs and health of its citizens, no less than the individual himself, the law exacts of a carrier of passengers a high degree of caution and vigilance to prevent accidents, and consequent injury. So, when the passenger is injured in the progress of the trip, the law presumes that the carrier has been guilty of negligence. In other words, when the plaintiff proves, as has been done in this case, that he took passage on defendant's train of cars, paid his fare, and received an injury, he has made out a prima facie case, and the burden of proof then shifts to the defendant to explain the circumstances of the injury. If it appears from its evidence that the injury was not attributable to the neglect of any duty which the law imposes upon it, then the prima facie case of the plaintiff is counterbalanced, and the jury, without more, should find for the defendant. The law requires that such carrier of passengers should exercise the highest degree of care. Care, diligence, and negligence are more or less relative terms. They cannot always be defined arbitrarily applicable indifferently to every state of facts. They cannot always be determined abstractly. Care and negligence must necessarily be judged of by the nature of the work to be done, the instruments to be used, the hazard and danger to life and limb from the character of the service to be performed by the carrier. 'Ordinary care' means simply that caution and vigilance which a reasonable and prudent person should exercise under like circumstances. So the term 'utmost care,' which it is said the carrier of passengers must exercise to prevent injury to his passenger, must often be considered relatively, in the sense above indicated.

You must look to the pleadings to see what are the issues of fact you are to try, for those are the only matters you are called here to determine. The allegations of this petition are that in carrying plaintiff up said incline, 'the said defendant, by its agents and employees, suffered and permitted said car in which plaintiff was being so carried, when at the summit of said incline, to become detached and precipitated with great velocity and violence down said incline many hundred feet, and to violently collide with and crash into another car of defendant, then standing on said railway; thereby, and in consequence thereof, plaintiff was greatly frightened, bruised, injured,' etc.; the simple meaning of which is that, after the car had made its ascent of the hill, and had reached a point near its summit, the defendant was guilty of some act of commission or omission by which the car ran backward instead of going forward. This is the question you are to try.

The defendant has undertaken, by evidence, to show that it had employed in the construction of its cars the best appliances known to the business, and the best machinery attainable. If you find from the evidence that defendant, in the construction and equipment of its track and cars for operation, had exercised the highest degree of care and circumspection known to it; that it had employed, as its evidence tends to show, the best material which it could ascertain by inquiry and experiment to be needful for such use; that it had employed the best brakes, grips, and appliances for running, stopping, and operating such cars, at such a point; and had exercised great care and caution in inspecting and testing such appliances, in a mechanical and skillful manner,-- then there would remain another question in the case, and that is, did the defendant also exercise due care in the selection of competent servants to run the car and put them in charge thereof, on this occasion? If it did that, there remains but one other fact for you to...